GCA Title 8, Chapter 40
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CHAPTER 40 RELEASE
NOTE : References to Director of Public Safety and Director changed to Chief of Police pursuant to P.L. 17-78:1, which repealed § 5102 GC providing for the Department of Public Safety, and reenacted § 5102 establishing the Guam Police Department. NOTE : Release - continues parts of Criminal Rule 46 and of Penal Code Title IX, Chapter I of Part 2 — ‘Bail.’ This Chapter incorporates much of the substance of the Federal Bail Reform Act of 1966 (18 U.S.C., Chapter 207). The change in title reflects a change from release only upon bail to release subject only to those conditions required by the circumstances of the case — a practice now followed by the Superior Court in a different form. No provision is made for ‘station-house bail’ - never used on Guam although authorized - because it is expected that a citation will be used where such bail may have been used. Compare Cr. Rule 46(a) with Chapter 25. See § 20.60, but also § 15.50 where the court may fix conditions of release in the warrant. Title 18 U.S.C. §3149 provides for release of material witnesses. See Cr. Rule 46(b) - bail for witnesses; § 75.40, CPC. This Chapter does not limit the Judicial Council from providing bail in traffic cases, and for a ‘forfeiture of bail’ in lieu of fine. See § 1.09, CPC.
- § 40.10. Release on Bail Generally Permitted.
- § 40.15. Release on Own Recognizance Defined: When Permitted.
- § 40.20. Bail Conditions; Defined, When to be Used.
- § 40.25. Solvency of Sureties to be Assured; Procedure.
- § 40.30. Procedure Where Surety Loses Worth.
- § 40.35. How Surety May be Exonerated; Deposit Sum With Clerk.
- § 40.40. Procedure for Handling Cash Bail.
- § 40.45. Bail Bondsman May Arrest Person.
- § 40.50. Bail Redetermination Hearing; When; Procedure.
- § 40.55. Statement to Arrestee Upon Release With Conditions.
- § 40.60. Additional Restrictions may be Applied; Application by Prosecutor; Additional Restrictions Listed.
- § 40.65. Retaking of Defendant Upon Violation of Conditions.
- § 40.70. Warrant Upon Failure to Appear.
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- § 40.75. Actions Allowed Upon Violation of Conditions or Failure to Appear.
- § 40.80. Appeal of Conditions Allowed.
- § 40.85. Release After Conviction Pending Appeal; Conditions.
- § 40.90. Penalty for Wilful Failure to Appear: Felony if Underlying Offense is Felony; Misdemeanor if Misdemeanor.
- § 40.95. Procedure Upon Forfeiture of Bail.
§ 40.10. Release on Bail Generally Permitted.
At his first appearance before a judge of the Superior Court, every person charged with an offense shall be ordered released pending trial in the manner and subject to the conditions provided by §§ 40.15 and 40.20. NOTE : Section 40.10 is an introductory provision comparable to the first sentence of former Rule 46. ‘Excessive bail’ is proscribed by the 8th Amendment of the U.S. Constitution as incorporated into the Organic Act by §§ 1421b(h) and 1421b(u). (48 U.S.C.A. § 1421b).
§ 40.15. Release on Own Recognizance Defined; When Permitted.
(a) As used in this Section, ‘release on own recognizance’ means release of the person charged without bail and upon his written agreement to appear in court at all required times and places and to fully comply with any other court-ordered conditions and restrictions. (b) The judge shall order the person charged to be released on recognizance, unless the judge determines, in his discretion, on the basis of available information, that such a release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community. (c) In determining whether there is a substantial risk of nonappearance by the person charged or that the person charged will endanger the safety of any other person or the community, the judge shall consider the following factors: (1) the nature of the offense charged, the apparent possibility of conviction and the likely sentence;
- the history and characteristics of the person
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charged, including: (A) length of his/her residence on Guam; (B) his/her employment status and history, and financial condition; (C) his/her family ties and relationships; (D) his/her reputation, character, and mental and physical condition; (E) his/her prior criminal record, if any, including any record of prior release on recognizance or on bail; (F) his/her history relating to drug or alcohol abuse; (G) the identity of the reasonable members of the community who will vouch for his/her reliability; (H) whether, at the time of the current offense or arrest, he/she was on probation, on parole, or on other release pending trial, sentencing, appeal or completion of sentence of an offense under federal, state or local law; and (I) his/her history of compliance with other court orders; (3) the nature and seriousness of the danger the person would pose to the community or to any individual member thereof if released; (4) statements of the alleged victim or others as to previous incidences of violence and threats made to the alleged victim; (5) lethality risk assessments or other risk assessments deemed appropriate by the Judiciary of Guam; and (6) any other factors which bear on the risk of willful failure to appear or the danger the person would pose to the community or to any individual member thereof if released.
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(d) Nothing in this Section shall be misconstrued as modifying or limiting the presumption of innocence. SOURCE : Section 40.15 amended by P.L. 20-111:1 (Oct. 19, 1989); P.L. 24-239:10 (Aug. 14, 1998), and P.L. 34-071:3 (Dec. 15, 2017).
§ 40.20. Bail Conditions; Defined, When to be Used.
Where the judge determines that release of the person charged on his/her own recognizance will not reasonably assure his/her appearance as required, or will endanger the safety of any other person or the community, the judge shall impose the least onerous of the following conditions which is reasonably likely to assure the person’s appearance as required and the safety of any other person and the community, or, if no single condition gives that assurance, the least onerous combination of the following conditions: (a) placement of the person in the custody of a designated person or organization agreeing to supervise him/her and to assist him/her in appearing in court; (b) placement of restrictions on the activities, movements, associations, and residence of the person; (c) placement of the person under supervision by means of electronic monitoring, including electronic monitoring with alleged victim stay-away alert technology, if available, and subject to the payment of fees or the exemption of fees, and other rules established by the court for electronic monitoring; (d) execution of a bond in an amount specified by the judge; such bond in the discretion of the judge to be either unsecured or secured in whole or in part by the deposit of cash or other property, or by the obligation of qualified sureties; (e) release of the person during working hours, but with the condition that he/she return to custody at specified times; (f) require the person charged with family violence or violation of a protective order to undergo a lethality risk
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assessment or other risk assessments deemed appropriate by the Judiciary of Guam; or (g) any other condition reasonably necessary to assure appearance as required and the safety of any other person and the community. SOURCE: Added by P.L. 13-186 (Sept. 2, 1976). Amended by P.L. 24239:11 (Aug. 14, 1998) ( Family Violence Act of 1998 ), and P.L. 34-071:4 (Dec. 15, 2017). NOTE : Section 40.20 is new. It is based on 18 U.S.C. § 3146(a) and ABA, Project on Minimum, Standards for Criminal Justice Pretrial Release §§ 5.2, 5.3 (Approved draft 1968). See also former Rule 46(c), (d). Subsection (a) follows the basic form of § 3146 (a)(1). The ABA standards add a separate condition providing for the supervision of the accused by ‘a probation officer or other appropriate public official.’ See § 5.2(b) (ii). Although not specifically so stated, Subsection (a) permits placing the accused under the supervision of any person, including a probation officer other public official. Subsection (c) deals with bonds generally and grants the court broad discretion to fashion the terms of the bond in whatever manner appears necessary. Unlike 18 U.S.C. § 3146(a), this Section makes no attempt to list the possible conditions in order of degree of onerousness. The impact of the different conditions on different persons will vary and the court should consider these differences as they apply in each case. For example, money bail to a very wealthy person would have little impact unless set extremely high. On the other hand, money bail even in a low amount to an indigent would preclude release.
§ 40.25. Solvency of Sureties to be Assured; Procedure.
(a) Where a bond secured by a surety is required pursuant to this Chapter, the judge may require the person seeking to be the surety to show by affidavit that he is worth the amount of the bond and is otherwise responsible. In the affidavit the person may be required to describe the property by which he proposes to justify and the encumbrances thereon, and to list all his other assets and liabilities. The judge may further examine the person under oath and may call and examine witnesses to determined whether the person is qualified. (b) Nothing in this Section precludes the judge from allowing two or more sureties to justify severally in amounts less than that expressed in the bond, if the whole justification equals the amount required.
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NOTE : Section 40.25 is based on former Rule 46(e)and §§ 1279-1280b. However, § 40.20 now provides the court greater flexibility in setting the terms of the appearance bond. The bond may be unsecured or secured, in whole or in part, by deposit or the obligation of sureties. Because of this flexibility no purpose would be served in requiring the surety to show more than sufficient solvency and responsibility. Hence, this Section eliminates some of the specificity regarding qualifications of the surety contained in the former sections. If, however, there is a fear that the surety’s solvency or responsibility may be illusory or temporary the court can require actual deposit. See §§ 40.20, 40.30.
§ 40.30. Procedure Where Surety Loses Worth.
Where a person is released pursuant to this Chapter on an appearance bond secured by a surety, and it is thereafter shown, on noticed motion, that the surety is no longer worth the required amount or has become otherwise insufficient, the court may order the furnishing of such additional security as may be required to satisfy the condition imposed and may order the person detained until such security is furnished. NOTE : Section 40.30 is based on a portion of former PC § 1310.
§ 40.35. How Surety May be Exonerated; Deposit Sum With Clerk.
A person released pursuant to this Chapter on the condition that an appearance bond secured by a qualified surety be furnished, may, at any time before declaration of forfeiture, deposit with the clerk of the court a sum equal to the amount of the bond, and upon the deposit being made the surety on such bond is exonerated. NOTE : Section 40.35 continues the substance of former § 1296 and a portion of former Rule 46(g).
§ 40.40. Procedure for Handling Cash Bail.
Any deposit required or authorized as a condition of release may be made by the person released or by any other person. A receipt shall be issued in the name of the depositor. If the money remains on deposit at the time of a judgment for the payment of a fine, the clerk shall, under the direction of the court, if the defendant be the depositor, apply the money in satisfaction thereof, and after satisfying the fine, shall refund the surplus, if any, to the defendant. If the person to whom the receipt for the
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deposit was issued was not the defendant, the deposit shall be returned to him at any time after the court has ordered such return and upon the depositor’s submission of his receipt. NOTE : Section 40.40 continues the substance of former § 1297 but also authorized and provides for the disposition of a deposit made on behalf of the defendant by a third person. Compare Cal. Pen. Code §§ 1295, 1297. Return may be ordered under various circumstances. See § 40.45 (exoneration by surrender of the person released); 40.95 (order setting aside forfeiture of requiring remission); 120.18 (order following acquittal of the defendant).
§ 40.45. Bail Bondsman May Arrest Person.
Any person released pursuant to this Chapter on a deposit by a third person or an appearance bond secured by a surety, may be arrested by the depositor, surety, or his agent, and delivered to the custody of the Chief of Police. The depositor or surety shall at the same time deliver a copy of his deposit receipt or bond to the Director who shall acknowledge such delivery by a certificate in writing. The Chief of Police shall take custody of the person arrested and forthwith file the copy of the deposit receipt or bond and his certificate in the Court in which the action is pending and bring the depositor or surety exonerated, and shall, after notice to the prosecuting attorney, either release the person on such new conditions as are reasonably necessary to assure the person’s appearance as required or the safety of any other person and the community or detain the person until he/she has furnished the necessary security. SOURCE : Added by P.L. 13-186 (Sept. 2, 1976). Amended by P.L. 24239:12 (Aug. 14, 1998). NOTE : Section 40.45 is based on 18 U.S.C. § 3124, former §§ 13001301, and portion of former Rule 46(g). The section continues the generally recognized authority of the depositor or surety to surrender his principal and obtain exoneration. The section also makes clear the court must then review its release decision and either impose new conditions or detain the accused until a proper appearance bond is provided. For law did not permit deposits by a third person. This however, has been changed in con